How Can You Tell If Uploading Your Cover Song To YouTube Is Infringing? You Can't

from the broken-systems dept

Fri, May 4th 2012 10:29am — Mike Masnick

If there is such a thing as a functioning copyright system, one of its tenets should be that it is quite easy to know if what you're doing is infringement. Of course, as we've discovered over and over again, people infringe unkowingly all the time -- and it's not just because of negligence or ignorance. Often it's because it's simply impossible to figure it out. Take, for example, the quite common practice of uploading a cover of a song to YouTube. This happens all the time. Lots of people record themselves singing popular songs and put them on YouTube. According to Andy Baio, about 12,000 such cover songs are uploaded each day. Justin Bieber became Justin Bieber because of some YouTube videos of him singing someone else's songs.

But is that breaking the law?

Andy Baio dug into that question and discovered that it's almost impossible to determine that. Now, if you're merely recording a cover song for release, there are compulsory/mechanical license fees you can use. This is why you see cover songs on albums all the time. They're not done with "permission," but rather because someone paid the compulsory rate set by the government. The problem, however, is when you add video to the mix. Once you're talking about a video with music, a second license has to be secured: the sync license. And there are no compulsory rates with sync licenses -- meaning that the copyright holder can (and often does) demand exorbitant fees if they even respond to your request at all.

Now, as Baio notes, Google did sign a deal with the National Music Publishers Association to allow publishers to join a program where they get some money in exchange for allowing their songs to be played by others on YouTube. But no one knows whose publishing rights are actually covered by that agreement, meaning that it's effectively useless.

The end result? It's likely that a rather large number of the cover song videos uploaded each day are infringing -- potentially opening up the uploaders to huge statutory fines for violating copyright law. This is a clear sign of where the law is broken. The law clearly wasn't mean for these kinds of situations, and it's easily fixable. Baio makes the point that here's an easy reform to copyright law that would decriminalize a very common behavior:

The real question: Why is it illegal in the first place?

Cover songs on YouTube are, almost universally, non-commercial in nature. They’re created by fans, mostly amateur musicians, with no negative impact on the market value of the original work. (If anything, it increases demand by acting as a free promotional vehicle for the track.)

The best solution is the hardest one: To reform copyright law to legalize the distribution of free, non-commercial cover songs.

Copyright law was intended to foster creativity by making it safe for creators to exclusively capitalize on their work for a limited period of time. Cover songs on YouTube don’t threaten that ability, and may actually prevent new works by chilling talent that could go on to do great things.

Seems like a simple enough thing to fix... which is why it's unlikely to actually happen.

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Filed Under: compulsory license, cover song, royalties, synchronization
Companies: youtube

46 Comments

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Robert (profile), 4 May 2012 @ 10:37am

Reproduction?
Doesn't a cover count as a reproduction?

The FBI warnings on movies are similar, no reproduction, duplication (whole or part), etc..

Don't you need permission to cover, even if non-commercial?

SOCAN thinks so. Any song in their repetoir requires a license and collection of fees based on ticket sale percentage or minimum, depending on which is greater (their website). Yes, venues can sign deals, I am just telling you what's on SOCAN's site (as I looked it up for my wedding, they wanted $40 for SOCAN music and even the venue would not know that my unregistered songs were not SOCAN licensed and no fee was applicable).

Hell, if I register with SOCAN and perform my own songs, SOCAN expects a percentage of the performance ticket sales. Do you honestly think they'll give that back in full to me?

If you do covers, it is understandable, you are playing others' music and therefore they deserve the small percentage SOCAN estimates.

I could be wrong, but this is what SOCAN has on their website, or did back in 2010.
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Anonymous Coward, 4 May 2012 @ 10:39am

A handy rule of the thumb for these situations is: whatever you do, it is illegal, given enough lawyers.
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A Dan (profile), 4 May 2012 @ 10:39am

Typo
"But no one knows who's publishing rights" should be "whose publishing rights"
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Michael Costanza (profile), 4 May 2012 @ 10:44am

Re: Typo
Fixed. Thanks.
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Anonymous Coward, 4 May 2012 @ 10:53am

Devil's Advocate Time
How unlike the "original" does a cover have to be to fail to qualify as a cover?

What qualities are judged to ascertain a cover (sound, words, emotion, sales?).

Yotub is just one of latest nervous mouthpieces. There will be more and they will fade. And then the more will fade as more come forth. And do on. So who is the ultimate arbitrator (not for 'merica, but for all existence)?

Does the ancient british invention of copyright extend beyond the planet? The solar system? The Milky Way? The Universe? How far? Says who?

If you cover a successful cover of an unsuccessful song and there are several other unsuccessful covers, who has the right to sue?

Why does it always come down to non-entities (politicians), lawyers and courts? Would the world be better off without them?

At what point in history did or will mankind stop creating?

Is this just an adjustment period?

When will it all end?
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Kevin Bingham, 4 May 2012 @ 10:58am

Cover song better than the original?
There could be an interesting situation where the cover song is better than the original, and becomes more popular. Would that hinder the original creator from capitalizing on their work?
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Anonymous Coward, 4 May 2012 @ 11:08am

Why stop at cover songs?
How about we take it further and remove the derivative works clause entirely? That would solve a whole bunch of these kinds of issues.

In my opinion the derivative works clause is probably the most problematic part of the copyright package. A derivative work is a separate product from the original work. I don't see any economic justification for blocking them.
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gorehound (profile), 4 May 2012 @ 11:15am

These kind of issues have existed for a long time.I edit Audio/Video for years now and it is probably a worse situation as we now have the Internet.And the MAFIAA Companies will take you for what they can.Best bet is to use INDIE Bands who do it for exposure and fun.INDIE won't put you into a Court having your pants sued off ya.
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pixelpusher220 (profile), 4 May 2012 @ 11:18am

Re: Reproduction?
If you're making the music it's not a copy, but you playing the same music so I would say no it's not a 'copy' or duplication.

Now if you're stripping the audio straight off the music and voicing over it, maybe, perhaps, but then again it's not a song but a video at least in this case so you aren't 'copying' the original but transforming it.
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John Fenderson (profile), 4 May 2012 @ 11:19am

Re: Reproduction?
Doesn't a cover count as a reproduction?

I don't believe it does. I think a reproduction is when you are making a copy. When you are performing a cover, that's not a copy (it's you performing), but you are using a song written by someone else.
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Anonymous Coward, 4 May 2012 @ 11:22am

Geez, what an easy question. Just double check the following list.

1. Upload content (This can be any content, from original creation to birds chirping in nature)

2. Make payment to the MPAA/RIAA.

If you failed to do both, you are infringing.
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John Fenderson (profile), 4 May 2012 @ 11:23am

Re: Cover song better than the original?
I can think of a number of examples of exactly that, where the cover was much superior to the original. I can also think a few examples where it's the cover that became the big hit and the original is all but forgotten.

In either case, the songwriter would still be due royalties and so would still be capitalizing. Maybe. If you can figure out the actual rules.
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Anonymous Coward, 4 May 2012 @ 11:44am

Re:
Ok, I screwed that up.

If you do step 1 but fail to do step 2, you are infringing =P
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monkyyy, 4 May 2012 @ 11:48am

Re: Why stop at cover songs?
but but, THINK OF THE CHILDREN
TERRORISM
THE ARTIST
THE WORLD
BLAH BLAH BLAH BLAH
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monkyyy, 4 May 2012 @ 11:51am

Re:
ur wrong

2. request riaa/mpaa to send u a bill

3. take out loans to pay bill

4. ask them what drm u need to add

5. watch as drm loses u all ur money u need to pay off debt

6. ???????

7. profit
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DannyB (profile), 4 May 2012 @ 12:10pm

Proposal: A SIMPLE test of infringement
Does your action enrich the old school monopolists, gatekeepers and collection societies?

If not, then it is infringing.

(Is that a simple enough test of infringement for you? Even a congresscritter could understand that.)
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Anonymous Coward, 4 May 2012 @ 12:18pm

Re: Reproduction?
The so-called "FBI" warnings on movies are made up boilerplate nonsense that the production studio writes themselves and slaps an FBI logo next to. Almost everything in it is an overstatement or an outright fabrication.
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Torg (profile), 4 May 2012 @ 12:23pm

Re: Reproduction?
A cover of a song is as much a reproduction of that song as this is a reproduction of Assassin's Creed.

SOCAN sounds like it's exploiting the uncertainty in the law that this article is discussing. The point here is that it's ridiculous to consider a cover infringing, not that it doesn't happen.
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Anonymous Coward, 4 May 2012 @ 12:24pm

Re: Proposal: A SIMPLE test of infringement
Does your action enrich the old school monopolists, gatekeeper, and collection societies in the manner they are accustomed to being enriched?

If it's money that's not easy for them to see how they're being enriched because they've never been enriched in that way they probably won't even correctly recognize when they are being enriched.
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DanZee (profile), 4 May 2012 @ 12:45pm

Money
It's all about money. If you just post yourself singing a song on YouTube, nobody cares. But the minute you create a YouTube channel and try to get some of YouTube's ad revenue, then someone will care!
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DanZee (profile), 4 May 2012 @ 12:47pm

Money
It's all about money. If you just post yourself singing a song on YouTube, nobody cares. But the minute you create a YouTube channel and try to get some of YouTube's ad revenue, then someone will care!
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Overcast (profile), 4 May 2012 @ 12:54pm

The Funny/Stupid thing is - in the case of 'cover songs' - the RIAA is cutting their own foot on free advertising.
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Anonymous Coward, 4 May 2012 @ 1:38pm

To me the primary problem is that Youtube is earning money on advertisement. The RIAA and MPAA can smell that, but they are confused by how little money is making that much smell. That is why the sites are getting sued to hell and not the users + it is why ISPs are getting told to "close access to" them.

The AA's think of every person as a certain amount of money no matter the medium. They are moving away from that, but too slow to bring legal alternatives to the interwebs. They still haven't understood that they need the legal businesses on the net to thrive to be able to fight piracy on the net efficiently.

"Having a monopoly in Florida and extorting and/or bribing local politicians there will not have much effect on laws in California."
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John Fenderson (profile), 4 May 2012 @ 2:06pm

Re:
They are moving away from that

Wha?? They are?
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monkyyy, 4 May 2012 @ 2:33pm

Re:
another rule of thumb is anything u do can be legal if given enough bribes
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Ophelia Millais (profile), 4 May 2012 @ 3:33pm

Re: Why stop at cover songs?
There are those who feel they're getting a raw deal if they create something and then someone makes some minor change to it, takes all the credit and profits handsomely. I doubt they would be easily persuaded that your proposal is a good idea. How would you win them over?
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AzureSky (profile), 4 May 2012 @ 3:38pm

As soon as i read this,
As soon as i read this topic I had to share one of my favorite cover artists.
http://www.youtube.com/user/meytalll
kickass stuff :D
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Anonymous Coward, 4 May 2012 @ 4:19pm

One error
Copyright was meant to promote the progress of science, not the progress of the latest lady gaga album or the new soupa mario bruddahs.
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Milton Freewater, 4 May 2012 @ 4:56pm

Re:
I don't know that the primary problem is Youtube earning money on advertisements. All content creators want to fight plagarists on principle. Plagarism (intellectual property theft) dilute the value of your work, if nothing else.

The problem is the decision to treat a cover version as a plagarized work. It's a derivative work, and a creator of a derivative work has some rights too.

To me, two changes would be ideal: government-set royalties for works that profit less than a set amount, and the creator of the secondary work (when flagged) given the choice to pay the fee or take it down, with the work left online in the balance.
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Anonymous Coward, 4 May 2012 @ 6:02pm

Re: Re:
Plagirism isn't theft, it's lying.

Also, while misattribution hurts author's/artist's ability to earn income and fans knowledge of their favorite works, the value of the works themselves remains the same.

This is not to defend plagirists as I detest liers.
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Twe, 4 May 2012 @ 6:22pm

Ehh, these are the folks that'd slam you for humming a song.
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Anonymous Coward, 4 May 2012 @ 8:13pm

it's easy, it's infringing until google get's licenses from all publishers.
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The Infamous Joe (profile), 5 May 2012 @ 8:23am

Put money directly beneath their nose
We keep hearing about how, without copyright protection, all we would get is amateur shit, not even worth watching. This implies that only the old guard can make things worth anything. So, if "amateur" art can't compete, then it shouldn't harm the market for their media.

They should put their money where their mouth is, if anything "amateur" is so far beneath them, then there is obviously no harm in allowing it.
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Ninja (profile), 7 May 2012 @ 6:53am

Re:
Good luck doing that for reasonable fees. That's another problem of copyright.
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Ninja (profile), 7 May 2012 @ 7:13am

Seems like a simple enough thing to fix... which is why it's unlikely to actually happen.

Sadly it's true. Actually, all non-commercial activity should be exempt from copyright. As far as I can see, copyright should prevent commercial exploitation of a work (the execution of an idea) and nothing more.
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Anonymous Coward, 7 May 2012 @ 2:22pm

Re: Re: Why stop at cover songs?
Same AC here.

Derivative works are a very important thing. People build on each other's ideas. It's how human culture has always worked for thousands of years.

Now pretty much the entire twentieth century is presumed illegal to tap into for that purpose. All thanks to intellectual property.

People who think they can release their works to the outside world and still keep absolute control are overestimating themselves. Those who think they're entitled to crush the evolution of culture are wrong.
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RIck Kniazeff, 21 Nov 2012 @ 5:48am

Copywrite BS
It's so stupid, I have no words for it...
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RIck Kniazeff, 21 Nov 2012 @ 5:54am

Copywrite BS
It's so stupid, I have no words for it...
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Ian Walker, 17 May 2013 @ 11:07pm

...
I've read from top to bottom on this (including comments) trying to get some insight as I wish to start a music channel on YouTube somewhere in the near future and have been set back quite a bit as I would have started off doing covers to try gain an audience but to be honest I'm absolutely clueless now, I don't know how it works? The bigger YouTube cover artists like Tyler Ward, Alex Goot etc. Would they make money from the covers they produce or must they pay to do them? I'm much more confused than I was before I read this..
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Katy, 2 Sep 2013 @ 11:06pm

Re: ...
I, too, am in your same situation, Ian! I wanted to make acoustic covers similar to The Piano Guys, but I've been stuck plowing through wonderfully confusing world of music licensing. I've tried contacting publishing companies about synchronization licenses, and if I'm not ignored entirely, I've been quoted a good $2000 a year to post a video. How can a melody that takes maybe 30 minutes to learn by ear cost $2000 to post online??!!? I've scratched my head long and hard trying to figure out how big youtubers can post cover versions AND monetize them without getting into trouble (even if they do make enough money to pay $2000 a year for a video, they sure post them much faster than I've ever been able to get a reply from the publishing companies! They take a good 6 to 8 months to reply!!...). So far, the only things I've learned about are Full Screen and Maker Studios, which seem to be the answer for many cover artists. I believe they both have contracts with Universal Music Publishing (and perhaps a few other publishing companies) which allow people to cover a select list of songs. I would rather find a way to legally post things on my own, but it seems the music industry ignores the majority of the non-famous population. The whole copyright thing is a mess. I wish there were more artists contributing to the Creative Commons. Best of luck with your youtube account! I hope you can figure something out! And if you do, please let me know what you find out, because I'm as confused as you are!
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Anonymous Coward, 21 Dec 2013 @ 12:58pm

Re: Cover song better than the original?
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Re: Re:
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